Instigator / Pro

Michael Flynn is guilty, and should be convicted.


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Contender / Con

res ipsa loquitur

Round 1
I Argument: Res ipsa loquitur
I.a One reason standards are sometimes difficult to reason at all, whether we speak of scientific, medical, religious, political, or legal standards, is because they insist, or once insisted on the basis of a dead language: Latin. We revere the status of ancient Rome like no other empire on earth, ignoring that while Rome may not have been built in a day, and that some of all roads may have, indeed, never led to Rome, it is nevertheless a fact that Rome’s glory-days language is not actively spoken as the day-to-day communication standard by any nation on earth.
I.b Nevertheless, we are presented with this debate, Michael Flynn is guilty, and should be convicted,through the valor of a single phrase, a legal standard, in Latin: res ipsa loquitur:  literally, “the thing speaks for itself.” Or, as legal eagles interpret it: “In tort law, a principle that allows plaintiffs to meet their burden of proof with what is, in effect, circumstantial evidence. The plaintiff can create a rebuttable presumption of negligence by the defendant by proving that the harm would not ordinarily have occurred without negligence, that the object that caused the harm was under the defendant’s control, and that there are no other plausible explanations.”[1]  
I.c Taking the Contender role, I am immediately put on guard by the above quote from the Legal Information Institute of Cornell University Law School, to wit:
I.c.1 What is the burden of proof of res ipsa loquitur?
I.c.2 What was the harm or injury, specifically with regard to Michael Flynn?
I.c.3 What was the object that caused harm that was under Michael Flynn’s control?
I.c.4 Does the Michael Flynn case have no other plausible explanations? 
I.d These four questions demand answers from Pro.
II. What is the burden of proof of res ipsa loquitur?
II.a To prove the prima facie [According to the OED, defined as: at first sight; on the face of it; as it appears at first without investigation][2] case of res ipsa loquitur,Pro must demonstrate three critical concepts:
II.a.1 The charge against Michael Flynn “…was of a type that does not generally happen without negligence.”[3]
II.a.2 “It was caused by an instrumentality solely in defendant’s control.”[4]
II.a.3 “The plaintiff did not contribute to the cause.”[5]
II.b The charges [two] against Michael Flynn were, effectively, lying to the FBI during interview conversations with the FBI in regard to the Mueller investigation of Russian interference in the U.S. presidential election of 2016. In court, he pled guilty to the charges, but has not yet been convicted, and is seeking to reverse those pleas.[6]
II.c The burden on a res ipsa loquitur  argument by plaintiff is that harm or injury must have happened without the fault of plaintiff; otherwise, the burden fails in its attempt.[7] In the case of Michael Flynn, the resulting harm may have been exclusively the doing of plaintiff, thus violating II.a.3.
II.c.1 DOJ has determined that prosecutors in the case, and their agents, erred in the course of Special Council Robert Mueller’s investigation of Russian interference in the 2016 presidential election, ordered by then Assistant A.G. Rod Rosenstein.[8] The conclusion of Mueller’s Report, relative to Russian collusion, was that, "Further, the evidence was not sufficient to charge that any member of the Trump Campaign  conspired with representatives of the Russian government to interfere in the 2016 election."- Mueller Report, "Executive Summary to Vol 1," pg. 9[9] That denial of evidence includes Michael Flynn’s actions.
II.c.2 DOJ has determined that “after a considered review of all the facts and circumstances of this case, including newly discovered and disclosed information . . . the government has concluded that [Flynn’s interview by the FBI in January 2017] was untethered to, and unjustified by, the FBI’s counterintelligence investigation into Mr. Flynn,” and that it was “conducted without any legitimate investigative basis.”[10]
* I exclusively use the OED in all definitions used in my debates, being the ultimate dictionary of the English language. One must either own a hard copy edition [I do, in twenty volumes], or an online subscription [I have]. It is, otherwise, unavailable for consultation. One must take it by my assertion that I am faithfully representing proper definition.

Round 2
I regret that my opponent has forfeited the second round of this debate, thus having effectively forfeited half the debate; an infraction, according to policy, resulting in loss of the debate. In fact, Pro has not been on site my acceptance of the debate. I was truly interested in Pro’s side of the argument, and regret it will not be known. Regardless, I will continue my argument:
I Argument: What is the harm or injury with respect to Michael Flynn?
I.a Criminal prosecution takes place because a suspect is alleged to have committed a crime and is to be prosecuted to the fullest extent of the law, taking into consideration the suspect’s due process rights[1] throughout the prosecution phase of levying charges. The prosecution of Michael Flynn has never had a day of court trial, other than a string of motions, due to pre-trial bargaining back-and-forth, resulting in Flynn pleading guilty to two counts of lying to the FBI during the Robert Mueller investigation on the conditions that Flynn would not face other potential charges, and that Flynn’s son, associated with Flynn in Flynn Intel Group, Inc, would not be charged with a crime.
I.a.1 As a consequence of the plea deal, Michael Flynn issued a guilty plea in court. Following this filing, Flynn changed his legal representation, charging the former representation with giving poor advice that led to his guilty plea. The judge granted a delay in issuing sentence on the guilty plea while these changes, and other discoveries unturned by Flynn’s new representation, played out. The status of the case against Michael Flynn remained on hold until DOJ issued its cancellation of the case.
I.a.2 Therefore, at this point in the case, in order to meet the demands of a res ipsa loquiturlegal maneuver, as claimed by Pro, Pro must demonstrate, first, what harm has resulted from Flynn’s actions by negligence other than a delay in proceedings, in which the prosecution bears no responsibility. On that feature, alone [see my round 1, argument II.a.3, that prosecution did not contribute to the cause of harm], the prosecution has an apparent problem, but that problem will be deferred to my round 3 argument.
I.b Harm, in legal parlance, is “loss of or damage to a person’s right, property, or physical or mental well being.”[2] The application of res ipsa loquituradds negligence as a factor in the alleged harm. Since, officially, the “Government,” represented by prosecuting attorneys of the DOJ, said Government may well be asked what harm has Michael Flynn done to the Government, or the people of the United States by lying to, and pleading guilt for those actions, to the FBI? A plea that is, as of now, in jeopardy of remaining in force? Has the Government of the United States incurred a loss, or had physical or mental “damage” done to it by way of personal [does a government have such?] right, or property, or well being? Of this, Pro will have to demonstrate proof.
I.b.1 One of the limitations of res ipsa loquituris that such loss or damage as defined by “harm,” as related above in I.b, is that the harm, without fault by the plaintiff [the Government] is typically applied to persons and not to institutions, such as the Government. The harm in res ipsa loquitur  is typically related to “slip-and-fall” accidents. I put out a stick in front of your feet, and you tripped over it, breaking your arm in the fall. I am charged with the tripping, causing the harm. However, was my purpose specifically to trip you by intent, or was I unaware of your approach, and held out a stick, as if practicing casting with a fishing pole? Such is the prima faciecase; a case of circumstantial evidence, which will hold unless the prosecution fails to prove the three limiting factors argued in my round 1, arguments I.c.1, 2, 3; specifically I.c.2.
I.b.2 In fact, the harm done in this case has been done to Michael Flynn, having declared bankruptcy and the loss of his home as a result of defense of the charges against him. If the federal judge in the case determines to overrule DOJ’s drop of the case, rendering no prosecution of the case, how is the federal judge to proceed? My opponent alleges that, having pled guilty to the charges, in spite of Flynn’s motion to withdraw the guilty pleas, and, with consideration of res ipsa loquitur,Flynn is guilty of the charges and should be convicted, regardless of the harm done to Flynn by the Government’s alleged prima faciecase. I contend that by abandoning the case, let alone by the failure of res ipsa loqiturto have legitimate standing in this case, that the judge cannot pursue prosecution on his own, cannot prove Michael Flynn’s guilt, and, therefore, Michael Flynn is not guilty of charges that have been summarily dismissed by DOJ in the person of the Attorney General.
I rest my case for round 2.

[1]Ref: U.S. Constitution, Amendments 1, 3, 4, 5, 9, and 14.


Round 3

 It is, indeed, a shame that my opponent has forfeited the debate. It was over by ignoring the first two rounds, but I will continue with argument in my round three as there is more to demonstrate that Michael Flynn, under the proposed legal maneuver of res ipsa locquitur,is completely invalid. 
With nothing to rebut, I continue with this third round argument:
I Argument: What was the object that caused harm that was under Flynn’s control?
I.a Under res ipsa locquitur,the prosecution is obliged to demonstrate the object of harm that was under Michael Flynn’s complete control. Recall that in round 2, argument I.b.1, I proposed a hypothetical situation in which, while you were walking down the street, I held out a stick, as if practicing casting with a fishing pole. You tripped over the pole and fell, breaking your arm in the fall. This is a classic “slip and fall” incident that is a perfect condition for prosecution using res ipsa locquitur.  It appears that I am in complete control of the object of harm, the stick, and that your injury was a direct result of my careless negligence blocking your walking path. This is a valid prosecutorial argument, but Michael Flynn had no stick, and the Government did not trip over it. If fact, one may well ask exactly what was the instrument used by Flynn, and what was the harm done to the Government as a direct result of his alleged negligence? Do you hear the crickets? I certainly do.
I.a.1 No, no, an opponent may caution, the lies, obviously completely under Flynn’s control, were the instrument causing harm to the Government. But what harm was done? Has the Government tripped? Has it a black eye? Is there such obstruction as causing the Government delay in its daily tasks, and are those delays directly related to Michael Flynn’s control? Well, yes. The previous administration was foiled in its attempt to hang an absurd collusion-with-Russia charge against candidate, then President Trump, that Special Prosecutor and war hero Robert Mueller could not find after two years and $30 million of investigation, concluding, "Further, the evidence was not sufficient to charge that any member of the Trump Campaign conspired with representatives of the Russian government to interfere in the 2016 election."[1]
I.a.2 No harm, no foul, it is said. No harm, no res ipsa locquitur  case, I argue. Michael Flynn is not guilty, and should be left alone.

[1]Mueller Report, "Executive Summary to Vol 1," pg. 9

Round 4
I Conclusion: Res ipsa loquitur
I.a Never having an opposing argument through the previous three rounds, it is supposed I should not have to conclude my arguments, but I will do so should there be interest in my Con side of the debate. I truly hope all is well with my opponent, having initiated this debate, in good faith, I presume, to have offered argument, but then offered none. My best wishes to you, Captain.
I.b I will conclude with a review of the four questions posed in my R1, argument I.c:
“I.c.1 What is the burden of proof of res ipsa loquitur?
I.c.2 What was the harm or injury, specifically with regard to Michael Flynn?
I.c.3 What was the object that caused harm that was under Michael Flynn’s control?
I.c.4 Does the Michael Flynn case have no other plausible explanations?”
I.b.1 My rounds 1, 2, 3 responded to the first three questions. I refer the reader to them in review of this fourth argument. My concluding argument, followed by a summary, will be a discussion of the fourth question re: a plausible explanation for the Michael Flynn case. The Obama Administration DOJ originally conceived the charges of lying to the FBI against Michael Flynn after the FBI interviewed him in December 2016 during the presidential transition period following Trump’s successful campaign for President the previous month.[1] Eleven months later, November 2017, Flynn pled guilty to one charge of violation of 18 USC §1001, and “entered into a plea agreement with the office of Special Counsel Robert Mueller.”[2]
I.c However, contrary to previous allegation by Former Vice President Joe Biden that he knew nothing about the Flynn case, recent revelations via notes taken by Peter Strzok have been turned over to Flynn’s legal team. “While the page itself is undated; we believe that the notes were taken in early January 2017, possibly between January 3 and January 5.”[3] This was also during the transition period prior to Trump’s inauguration. The notes “…reveal that former President Obama, James Comey, Sally Yates, Joe Biden, and apparently Susan Rice discussed the transcripts of Flynn’s calls and how to proceed against him… Mr. Obama himself directed that ‘the right people’ investigate General Flynn.”[4]
I.d These notes by Peter Strzok have been in the hands of prosecutors, but, as exculpatory evidence, were apparently not revealed to the Flynn defense team, as required, until earlier this week [week of June 21, 2020]. This is clear violation of the Brady Rule [U.S. Supreme Court Brady v. Maryland 373  U.S. 83 [1963]],  which would reveal a plan by the administration to prosecute Michael Flynn before Special Council Robert Mueller was ever appointed. This revelation of notes demonstrates the other plausible explanation required to meet a res ipsa loquitur  argument by nefarious, and illegal means to implicate Michael Flynn.
I.e To be honest, I had planned an entirely different argument to settle my case that Michael Flynn is not guilty of the charges against him, if for no other reasons than that the previous three questions, the answers to which must be forthcoming to support a res ipsa loquitur argument as my opponent claimed, and have not, though I have justified that the prosecution cannot answer them truthfully and maintain their case. However, as this debate can make use of any supportable argument concurrent with the debate, the revelation of these notes by Peter Strzok greatly enhance my argument that Michael Flynn is not guilty. 
II Conclusion: Res ipsa loquitur fails
II.a Flynn is not only not guilty, but was railroaded in the first place by the Obama DOJ, the office of Special Council Robert Mueller, and, potentially, by President Obama, and Vice president Biden, themselves.[5]